In line with the Government’s ongoing reform agenda
in family law, most of this Bill deals with a range of amendments
to substantive and procedural aspects of the Family Law Act
1975 (the Act). In particular the Bill deals with the
enforcement of court orders, introduces the term
‘divorce’ and allows for recovery of child maintenance
paid by a person found not to be a parent. The Bill also
makes a range of largely technical amendments intended to improve
the operation of the Act.

Part 16 of the Bill amends the Bankruptcy Act 1966
(Bankruptcy Act), to supplement reforms relating to bankruptcy and
family law interaction presently contained in the Bankruptcy and
Family Law Legislation Amendment Act 2005 . These
amendments will ensure that the Family Court of Western Australia,
along with the Family Court of Australia, will acquire jurisdiction
under the Bankruptcy Act in relation to bankruptcy matters arising
in concurrent family law proceedings where a party is a
bankrupt.

Part 17 of the Bill also contains amendments to the
Family Law Act 1975 that supplement reforms under the
Bankruptcy and Family Law Legislation Amendment Act 2005 ,
reinforcing the role of the trustee in bankruptcy as representing
the interests of all creditors in family property proceedings where
a party is a bankrupt or is subject to a personal insolvency
agreement.

Own motion
orders in enforcement proceedings under Part VII

Following introduction of
the three-stage parenting compliance regime in the Family Law
Amendment Act 2000 , it has become apparent that many parenting
orders by consent do not work for practical reasons. Instead
of bringing applications to vary the 'unworkable order', the
experience of courts exercising jurisdiction under the Act is that
parties tend instead to bring contravention
applications.

A new subdivision is to be
created in Division 13A of Part VII of the Act to provide a court
dealing with a contravention application to vary the subject
parenting order of its own motion.

These
provisions are intended to replace outdated and legalistic terms in
the Act relating to the termination of marriage with more modern
language including the use of the term divorce.

‘Decrees
nisi’ and ‘absolute’ are replaced by the term
‘divorce order’. Just as ‘decree
absolute’ takes effect one month after the ‘decree
nisi’, the divorce order would take effect one month after it
is made. In that month, proceedings can be brought to have
the divorce order rescinded.

The term
‘dissolution of marriage’ is replaced by the concept of
‘divorce’. A definition of divorce is set out in
the definition section of the Act.

Proceedings
for principal relief - replacing with a concept of
‘divorce or validity of marriage
proceedings’

The Act
refers to proceedings for principal relief in a number of
places. That concept describes proceedings for a decree of
dissolution or a decree of nullity or proceedings for a declaration
of the validity of a marriage or the validity of a decree of
dissolution.

In keeping
with the intention of making the language of the Act clearer, minor
amendments are inserted throughout the Act to refer, where
appropriate, to either ‘divorce proceedings’ or
‘validity of marriage proceedings’.

Empower the Court to
order the repayment of monies paid under a child maintenance order
where the person is found not to have been the ‘parent’
of the child

A person who has been
ordered to pay child maintenance under Division 7 of Part VII of
the Act and who has been determined not to be a parent (for example
through DNA testing), does not have any remedy under the Act for
recovery of child maintenance wrongfully paid under that
order. This is because only a person who can apply for a
child maintenance order can apply for modification of that order
under section 66S of the Act. A person who is no longer a
parent is not able to seek such an order. Effectively this means
that such a person can only recover wrongfully paid child
maintenance by taking civil debt recovery action in a State
court.

Generally,
only parents who separated before 1989 and whose children were born
before that date could have applied for and can still apply to the
court for a parenting order in relation to the maintenance of a
child under the Act. All other child support applications
must be made under the Child Support (Assessment) Act
1989 .

Section 66X
in Part 14 of the Bill provides that where a court determines that
a party to a child maintenance order is found not to have been a
parent or a liable step-parent of the child to whom the order
relates, and that person has made payments under the purported
order in respect of the child, the amount paid may be recovered in
a court having jurisdiction under Part VII of the Act. The
provision also allows for recovery of property transferred under a
child maintenance order of that kind.

FINANCIAL
IMPACT STATEMENT

These measures will have little or no financial
impact.

CONSULTATION
STATEMENT

The Bill has been subject
to consultation with both the Family Court of Australia and the
Federal Magistrates Court of Australia over a period of several
months. The Family Law Section of the Law Council of
Australia has also been consulted and the views of a range of key
stakeholders were provided to the Senate Legal and Constitutional
Legislation Committee in its consideration of the earlier version
of this Bill.

The Family Court of Western
Australia and the Family Court of Australia have been consulted in
relation to the proposed amendments in Part 16 of the Bill, which
confer parallel jurisdiction in bankruptcy on the Family Court of
Western Australia in the same terms as section 35 of the
Bankruptcy Act 1966 (enacted by the
Bankruptcy and Family Law Legislation Amendment Act
2005 ).

NOTES ON
ITEMS

Clause 1
- Short title

1. Clause 1
provides for the Act to be cited as the Family Law Amendment Act
2005 .

Clause 2
- Commencement

2. Clause 2
provides for the commencement of the Act. Subclause 2(1)
provides that each provision in Column 1 of the table will commence
on the day or at the time specified in Column 2 of the
table.

3. Sections
1-3 and anything in the Act not covered elsewhere in the table
commence when the Act receives Royal Assent.

4. The items
in Parts 1 to 15 of Schedule 1 to the Bill commence 28 days after
the Act receives Royal Assent.

5. The item
in Part 16 of Schedule 1 to the Bill commences at the same time as
amendments in Schedule 1 to the Bankruptcy and Family Law
Legislation Amendment Act 2005 commence.

6. The item
in Part 17 of Schedule 1 to the Bill commences immediately after
the commencement of Schedule 1 to the Bankruptcy and Family Law
Legislation Amendment Act 2005 .

SCHEDULE 1
- AMENDMENTS

Part 1
- Parenting compliance regime

Family Law
Act 1975

Item 1: At
the end of section 65F

7. A new
subsection 65(4) is inserted to define ‘proceedings for a
parenting order’ to make it clear that the court has power to
order a party to attend counselling in proceedings for enforcement
of a parenting order under Division 13A of Part VII of the Act, or
where contravention of such an order is alleged.

Item 2:
Subsection 65LA(3)

8. A new
definition of ‘proceedings for a parenting order’ is
inserted, to make it clear that the court has power to order a
party to attend post-separation parenting programs in proceedings
for enforcement of a parenting order under Division 13A of Part VII
of the Act, or where contravention of such an order is
alleged.

9. A new
Subdivision AA is inserted after Subdivision A of Part VII of the
Act. Subdivision AA contains section 70NEB, which provides
that a court may vary a parenting order if there is an alleged
contravention of a parenting order and either the court is not
satisfied that there was a contravention, or the court is satisfied
there was a contravention but that there was a reasonable
excuse.

Item 4:
Application

10. The new
section 70NEB inserted by Item 3 is to apply whether the parenting
order is made before or after the commencement of the
Subdivision.

11. The reason
for the provision applying to parenting orders made before the
provision commences is that without this provision a court dealing
with a contravention of a parenting order application is left with
little it can do, when it does not find the contravention proven,
except to dismiss the proceedings. This will be the case even
though it is clear that what is really required is a variation of
the original parenting order so that it operates more
effectively.

Part 2
- Costs and offers of settlement

Family Law
Act 1975

Item 5: Paragraph
117(2A)(f)

12. This item amends paragraph
117(2A)(f) so that when a judge is determining whether to make a
costs order (under subsection 117(2)), there is no longer a
requirement to consider whether the parties have made an
offer of settlement in accordance with section 117C.

14. Provisions dealing with
filing of offers are now comprehensively dealt with under the new
Family Law Rules which came into effect on 29 March
2004.

Item 7:
Application

15. This item deals with the
way the amendments under this Part will be applied. It
specifies that the changes made regarding offers of settlement will
apply on or after the commencement of the changes.

Part 3 - Suspension
of sentences of imprisonment

Family Law Act
1975

Item 8: After subsection
70NO(4)

16. This item inserts a new
subsection 70NO(4A), which gives the court an express power to
suspend or terminate a suspension of an imprisonment order where a
sentence of imprisonment has been made under paragraph
70NJ(3)(e).

Item 9: After subsection
112AE(4)

17. This item
replicates the provision inserted in Item 8 (above) in relation to
the court’s power to suspend or terminate a suspension of an
imprisonment order under subsection 112AD(1).
Importantly, the power in subsection 112AE(4) relates to the
court’s broader power to imprison, rather than being
restricted to the parenting order compliance regime relating to
children, as subsection 70NO(4) does.

Part 4
- Enforcement (removal of information
procedure)

Family
Law Act 1975

Item 10:
Subsections 70NN(2) to (7)

18. This item
repeals subsections (2) to (7), and substitutes a new subsection
(2). The repealed subsections deal with what happens after
information is laid before a magistrate in the context of
proceedings that relate wholly or partly to a parenting
order. Currently a magistrate can proceed to issue a summons
or warrant for the arrest of a person.

19. The
amendment provides that, where a court that has made a community
service order or required a bond to be entered into is satisfied
that a person failed to comply with the order or bond without
reasonable excuse, then it can exercise its powers under subsection
(8) without having to go through the information
procedure.

Item 11:
Subsection 70NN(10)

20. This item
repeals subsection (10) which has no operation following the repeal
of the provisions requiring procedures for laying of
information.

Item 12:
Subsections 112AH(2) to (7)

21. This item
repeals subsections (2) to (7) and replaces them with a new
subsection (2). The amendments are in the same terms as in
Item 10 above. Section 112AH applies more broadly to orders
made under the Act, than proceedings that relate to parenting
orders, as section 70NN does in Item 10.

Item 13:
Subsection 112AH(10)

22. This item
repeals subsection (10) which has no operation following the repeal
of the laying of information procedures.

Item 14:
Application

23. This item
provides that the amendments contained in this Part come into
operation on or after the commencement of this Part.

Part 5
- Private arbitration

Family
Law Act 1975

Item 15: Subsection
4(1)

24. This Part provides for the
expansion of matters that can be dealt with by private arbitration,
which is dealt with in section 19E of the Act.

25. Item 15 inserts a
definition of Part VIIIA proceedings. This definition
supports the amendment in Item 18 relating to the definition of
'dispute' for the purpose of private arbitration. For the
purposes of this definition, Part VIIIA proceedings relate to
financial agreements.

Item 16: Subsection
4(1)

26. Item 17 inserts a
definition of Part VIIIB proceedings. This definition supports the
amendment in Item 18 relating to the definition of 'dispute' for
the purpose of private arbitration. For the purposes of this
definition, Part VIIIB proceedings relate to proceedings
within the meaning of that Part, including superannuation
agreements and proceedings relating to a payment spilt or
flag.

Item 17: Subsection
4(1)

27. This item inserts a
definition of section 106A proceedings. This definition
supports the amendment in Item 18 relating to private
arbitration. For the purposes of this definition,
section 106A proceedings relate to the execution of
instruments by order of the court to assist in the enforcement of
orders made by the court.

28. This item
repeals the current provision and inserts a substitute which
retains reference to Part VIII proceedings, and adds three new
types of proceedings which may be subject to a private arbitration
under the Act. Under this change, Part VIIIA proceedings
relating to financial agreements, Part VIIIB proceedings relating
to superannuation and section 106A proceedings relating to
execution of instruments by order of the court, are now included in
the definition of ‘dispute’ for the purposes of
subsection 19E(3), relating to private arbitration under section
19E.

Part 6
- Change of venue

Family
Law Act 1975

Item 19: After section
27

29. This item inserts a new
section 27A which gives an express power to the Court to make an
order for a change of venue. This is a discretionary power as
it can be used at any point during a proceeding being heard, and
any such order can be made subject to any term or condition
as determined by the Court or Judge. The Court also has the
capacity to direct that only part of the proceedings be subject to
a change of venue.

Part 7
- Definition of disposition

Family
Law Act 1975

Item 20:
Subsection 106B(5) (definition of
disposition )

30. This item
repeals the definition of disposition and substitutes an expanded
definition which includes the issue, grant, creation, transfer or
cancellation or variation of rights in an interest in a company or
a trust.

Item 21:
Subsection 106B(5)

31. This item
inserts definitions of what is an interest in a company, and what
is an interest in a trust. An interest in a company is
broadly defined and includes a share in or debenture of the company
and an option over a share in or debenture of the
company.

32. An
interest in a trust is broadly defined and includes: a beneficial
interest; the interest of a settlor in property subject to the
trust; a power of appointment under the trust; a power to rescind
or vary a provision or the exercise of a power under the trust; and
an interest that is conditional, contingent or deferred.

Item 22:
Application

33. This item provides that the amendments in this
Part come into operation on or after the commencement of this
Part.

Part 8
- Appeals

Family Law
Act 1975

Item 23:
Subsection 94(2D)

34. The
amendment in this item indicates that the range of matters for
which an application can be made under subsection 94(2D) are of a
procedural nature.

Item 24:
After paragraph 94(2D)(d)

35. This item
brings under subsection 94(2D) six additional types of procedural
applications which concern the conduct of an appeal to the Family
Court from courts other than the Federal Magistrates Court.
The new paragraphs 94(2D)(e) to (j) provide for procedural
applications: for an extension of time within which to file an
application for leave to appeal; for security for costs in relation
to an appeal; to reinstate an appeal dismissed under a provision of
the Rules of Court; to adjourn the hearing of an appeal; to vacate
the hearing date of an appeal; or to expedite the hearing of an
appeal.

Item 25:
Subsection 94AAA(10)

36. This
amendment in this item indicates that the range of matters for
which an application can be made under subsection 94AAA(10) are of
a procedural nature.

Item 26:
After paragraph 94AAA(10)(d)

37. This item
brings under subsection 94AAA(10) six additional types of
procedural application which concern the conduct of appeals to the
Family Court from the Federal Magistrates Court. The new
paragraphs 94AAA(10)(e) to (j) provide for procedural applications:
for an extension of time within which to file an application for
leave to appeal; for security for costs in relation to an appeal;
to reinstate an appeal dismissed under a provision of the Rules of
Court; to adjourn the hearing of an appeal; to vacate the hearing
date of an appeal; or to expedite the hearing of an
appeal.

Item 27:
After section 94AAA

38. This item
inserts a new section 94AAB which provides that parties to an
appeal to the Family Court from either the Federal Magistrates
Court or a court other than the Federal Magistrates Court can elect
for the appeal, or leave to appeal, to proceed without an oral
hearing. The court has discretion not to provide for an oral
hearing. Subsection (3) provides that once the parties
consent to the appeal or application being dealt with by oral
hearing, that consent can only be withdrawn with the leave of the
court.

Part 9
- Transfer of matters from State courts of summary
jurisdiction to the Federal Magistrates Court

Family Law
Act 1975

Item 28:
Paragraphs 46(1)(a) and (b)

39. This item
repeals paragraphs (a) and (b) and substitutes them with
re-formatted paragraphs which expressly provide that the Federal
Magistrates Court may be one of the courts to which, in certain
cases, a court of summary jurisdiction is required to transfer
proceedings.

Item 29:
Subsection 46(1B)

40. This item
repeals subsection (1B) and substitutes new subsections (1B) and
(1C). Subsection (1B) provides that if proceedings are
instituted in a court of summary jurisdiction and the parties
consent to the proceedings being heard and determined in that
court, a party is not entitled subsequently to object to the
proceedings so heard and determined.

41. Subsection
(1C) provides that if the court of summary jurisdiction
subsequently gives leave to a party to object to the proceedings
being heard and determined, the Federal Magistrates Court is one of
the courts to which the court shall transfer
proceedings.

Item 30:
Subsection 46(2A)

42. This item
repeals subsection (2A) and substitutes a new subsection which
provides that where a court of summary jurisdiction hears defended
proceedings for a divorce order the Federal Magistrates Court is
one of the courts to which the court must transfer
proceedings.

Item 31:
Subsection 46(3A)

43. This item
repeals subsection (3A) and substitutes a new subsection which
provides that the Federal Magistrates Court is one of the courts
which may, on the application of a party or on its own motion,
order that proceedings pending under the Act or continued under
section 9 be transferred from a court of summary
jurisdiction.

Item 32:
Subsections 69N(2) and (3)

44. Section 69
generally requires that where contested proceedings for a parenting
order are instituted in a court of summary jurisdiction, that court
is required to transfer the proceedings to the Family Court, the
Family Court of a State, or the Supreme Court of the Northern
Territory unless the parties consent to the proceeding being heard
in that court. The requirement that proceedings be
transferred where there is not consent is provided in subsections
(2) and (3).

45. This item
repeals subsections (2) and (3) and substitutes new subsections
which provide for the addition of the Federal Magistrates Court as
being one of the courts to which a court of summary jurisdiction
must transfer a proceeding for a parenting order in contested
proceedings.

Item 33:
Paragraph 69N(5)(b)

46. This item
repeals paragraph (b) and substitutes a new paragraph which
provides that, even if parties consent to a court of summary
jurisdiction hearing the matter, the court may still transfer the
proceeding to another court (one of which is the Federal
Magistrates Court) on its own motion.

Item 34:
Subsection 69N(6)

47. This item
repeals subsection (6) and substitutes a new subsection. The
provision currently provides that if the parties consent to a court
of summary jurisdiction hearing an application for parenting
orders, the court can subsequently give leave for a party to object
to the proceeding being heard in that court. If an objection
is made, the court can, under the new provision, transfer the
proceeding to the Federal Magistrates Court or any of the other
courts referred to in item 31.

Item 35:
Application

48. This item
provides that the amendments apply to proceedings initiated before
or after commencement. The reason for the provisions applying
to proceedings initiated prior to the commencement of these
provisions is that under the current provisions many matters are
now referred from courts of summary jurisdiction to the Family
Court which then transfers them to the Federal Magistrates
Court. This simply delays the proceedings
unnecessarily.

Part 10
- Terminology relating to divorce and principal
relief

Family
Law Act 1975

Item 36: Subsection 4(1)
(definition of decree )

49. This item repeals the
current definition of decree and inserts a substitute. The
purpose of replacing this definition is not to change the meaning
but rather the terminology of the concept. The change
is from ‘decree nisi ’ to the more generic term
‘order’. This is consonant with other changes to
the Act to replace legalistic terminology with language that gives
a more accessible meaning to concepts, effects and procedures
relating to divorce under the Act.

Item 37: Subsection
4(1)

50. This item inserts a
definition of divorce, which has not been previously included in
the Act. The effect is to make a distinction between divorce
and annulment, to emphasise that divorce refers to a
termination of a marriage rather than declaring a purported
marriage void. Having a definition of divorce provides
clarity for greater understanding of the effect of the Act and the
concept itself. This is an expansive definition of divorce,
and is intended to cover divorces obtained overseas in
circumstances where the marital status of the parties is relevant
to proceedings under this Act.

Item 38: Subsection
4(1)

51. This item inserts a
definition of divorce or validity of marriage
proceedings . This definition supports other changes to
the Act, relating to terminology, to replace the phrase
‘principal relief’ with divorce or validity of marriage
proceedings. The concept of divorce or validity of marriage
proceedings describes the various matrimonial causes available for
parties to end their marriage. Parties can seek a divorce order, a
decree of nullity and declarations as to the validity of a
marriage.

52. This item repeals current
paragraphs (d) and (e) of the definition of marriage
counselling and inserts a substitute. The purpose of
replacing this Part of the definition is not to change the meaning
but rather the terminology. The phrase ‘dissolution of
marriage’ has been replaced with the more accessible term
‘divorce’. This is consonant with other changes
to the Act regarding terminology.

53. This item repeals current
paragraphs (a) and (b) of the definition of matrimonial
cause and inserts a substitute. The purpose of replacing
this Part of the definition is not to change the meaning but rather
the terminology of the concept. In the new paragraph (a) the
phrase ‘decree of dissolution of marriage’ has been
replaced with ‘divorce order’. For paragraph (b)
‘dissolution of marriage’ has been replaced with
‘divorce’ and the format has been changed to more
clearly set out the maters on which a declaration as to validity
can be made. These changes are consonant with other changes
to the Act regarding terminology.

54. This item amends the
current provision to replace the phrase ‘proceedings between
those parties for principal relief’ with ‘divorce or
validity of marriage proceedings between those
parties’. These changes are consonant with other
changes to the Act regarding terminology.

55. This item repeals the
current subparagraph (ca)(iii) of the definition of matrimonial
cause and inserts a substitute. The purpose of replacing
this definition is not to change the meaning but rather the
terminology of the concept. These changes substitute the word
‘divorce’ in all instances where
‘dissolution’ and ‘dissolution of marriage’
are used, consonant with other changes to the Act. No change
has been made to the effect of subparagraph (ca)(iii) in the
definition of matrimonial cause .

Item 43: Subsection 4(1)
(definition of prescribed proceedings )

56. This item repeals the
current definition of prescribed proceedings and inserts a
substitute. The purpose of replacing this definition is not
to change the meaning but rather the terminology of the concept and
the previous definition has been substantially retained.
These changes substitute the phrase ‘principal relief’
with ‘divorce or validity of marriage proceedings’
(wherever occurring), consonant with other changes to the
Act.

Item 44: Subsection
4(2)

57. This item repeals the
current definition of a party to a marriage and inserts a
substitute. The purpose of replacing this definition is to
change the terminology of the concept. The phrase
‘marriage that has been dissolved’ has been replaced
with the phrase, ‘terminated by divorce’ consonant with
other changes to the Act relating to terminology. The format
of the new definition has been changed to make the definition
clearer.

58. This item repeals the
current paragraph and its use of the term ‘dissolution of
marriage’. The purpose of replacing this term is not to
change the operation but rather the terminology of the
provision. This change is aimed to ensure the accessible term
‘divorce order’ operates, consonant with other changes
to the Act relating to terminology.

Item 46: Paragraph
33A(2)(a)

59. This item repeals the
current paragraph and its use of the term ‘decree of
dissolution of marriage’ to ensure the more accessible
‘divorce order’ operates, consonant with other changes
to the Act relating to terminology.

Item 47: Paragraph
37A(2)(a)

60. This item repeals the
current paragraph and its use of the term ‘decree of
dissolution of marriage’ to ensure the more accessible term
‘divorce order’ operates, consonant with other changes
to the Act relating to terminology.

Item 48: Paragraph
37A(2)(c)

61. This item amends the
current provision to replace the term ‘dissolution of
marriage’ with ‘divorce order’. The
purpose of replacing this term is to make the terminology of the
provision more accessible. The paragraph has also been
reformatted to make clearer the matters about which a declaration
of validity can be made.

Item 49: Subsection
39(3)

62. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order’
which provides a more accessible meaning of what proceedings are
being instituted, consonant with other changes to the Act relating
to terminology.

Item 50: Subsection
39(3)

63. This item amends the
current provision to replace ‘the decree’ with
‘the order’ which provides a more accessible meaning of
what the effect of proceedings will be, consonant with other
changes made to the Act relating to terminology.

Item 51: Subsection
39(4)

64. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order’
which provides a more accessible meaning of what the proceeding is
intended for, consonant with other changes to the Act relating to
terminology.

65. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘a decree of dissolution of marriage’ with
‘a divorce order in relation to a marriage’, which
provides a more accessible meaning of the purpose of the
proceeding, consonant with other changes to the Act. The
format of the section has also been changed to make clearer what
alternative proceedings may be instituted.

Item 53: Subsection
44(1B)

66. This item amends the
current provision to replace the term ‘dissolution of
marriage’ with the phrase ‘a divorce order in relation
to a marriage’, which provides a more accessible meaning of
the objective of proceedings under this provision, consonant with
other changes to the Act relating to terminology.

Item 54: Subsection
44(1C)

67. This item amends the
current provision to replace the term ‘dissolution of
marriage’ with the phrase ‘a divorce order in relation
to a marriage’, which provides a more accessible meaning of
the objective of proceedings under this provision, consonant with
other changes to the Act relating to terminology.

Item 55: Paragraph
44(3)(a)

68. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘a decree nisi of dissolution of marriage has
become absolute’ with ‘a divorce order has taken
effect’ which provides a clearer explanation of the same
process, consonant with other changes to the Act relating to
terminology.

Item 56: Paragraph
44(3)(c)

69. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘date of the making of a decree nisi became
absolute’ with ‘date on which the divorce order took
effect’.

Item 57: Paragraph
44(3A)(a)

70. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘a decree nisi of dissolution of marriage has
become absolute’ with ‘a divorce order has taken
effect’. Consonant with other changes to the Act
regarding terminology, this provides a more accessible meaning of
the concepts, without altering the operation of the
provision.

Item 58: Subparagraph
44(3A)(c)(i)

71. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘the decree nisi became absolute’ with
‘the divorce order took effect’.

Item 59: Paragraph
44(3B)(a)

72. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘a decree nisi of dissolution of marriage has
become absolute’ with ‘a divorce order has taken
effect’.

Item 60: Subparagraph
44(3B)(c)(i)

73. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
phrase ‘the decree nisi became absolute’ with
‘the divorce order took effect’.

Item 61: Section
44A

74. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order’
which provides a more accessible meaning of what proceedings are
being instituted, consonant with other changes to the Act regarding
clarity of language.

Item 62: Paragraph
46(2A)(a)

75. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order’
which provides a more accessible meaning of what proceedings are
being instituted. This is consonant with other changes to the
Act relating to terminology.

Item 63: Part VI
(heading)

76. This item repeals the
current heading and inserts a substitute. The purpose of
replacing this heading is not to change the operation of the Part
but rather to complement the terminology used in it. This
change replaces the word ‘Dissolution’ with
‘Divorce’, consonant with other changes to the Act
relating to terminology, which provides greater clarity of language
and meaning.

Item 64: Subsection
48(1)

77. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order in
relation to a marriage’ which provides a more precise meaning
of what the application is intended to achieve, consonant with
other changes to the Act relating to terminology.

Item 65: Subsection
48(2)

78. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of the marriage’ with ‘the divorce
order’. Consonant with other changes to the Act
regarding terminology, this change provides clarity of language
relating to divorce.

Item 66: Subsection
48(2)

79. This item amends the
current provision to replace the phrase ‘dissolution of
marriage’ with ‘the divorce order’, consonant
with other changes to the Act regarding terminology.

Item 67: Subsection
48(3)

80. This item amends the
current provision to replace the phrase ‘decree of
dissolution of marriage’ with ‘divorce
order’. This change is consonant with other changes to
the Act regarding to the terminology.

Item 68: Subsection
50(1)

81. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce
order’. Consonant with other changes to the Act
regarding the terminology of divorce, this provides a more precise
meaning than previously
used.

83. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of the marriage’ with ‘a divorce order in
relation to the marriage’. This change is consonant
with other changes to the Act regarding terminology.

Item 71: Section
54

84. This item repeals section
54. This removal is aimed at getting away from the legalistic
terminology of ‘dissolution of marriage’ and
‘decree nisi ’. To the extent that the
repealed provision sets out the interaction between these two
concepts, its repeal has no effect on the substantive operation of
the Act.

86. This item amends the
current provision to replace the phrase ‘a decree nisi
of dissolution of marriage does not become absolute’ with
‘a divorce order in relation to a marriage does not take
effect’. This change is consonant with other changes to
the Act regarding terminology.

Item 74: Subparagraph
55A(1)(b)(ii)

87. This item amends the
current provision to replace the phrase ‘the decree
nisi should become absolute’ with ‘the divorce
order should take effect’. This change is consonant with
other changes to the Act regarding terminology.

Item 75: Subsection
55A(2)

88. This item amends the
current provision to replace the phrase ‘a decree of
dissolution of marriage’ with ‘a divorce order in
relation to a marriage’. This change is consonant with
other changes to the Act regarding terminology.

Item 76: Subsection
55A(4)

89. This item amends the
current provision to replace the phrase ‘the decree
nisi of dissolution of marriage’ with ‘the
divorce order’. This change is consonant with other
changes to the Act regarding terminology.

Item 77: Subsections 56(1)
and (2)

90. This item amends the
current subsections to replace ‘where a decree nisi
becomes absolute’ with ‘if a divorce order takes
effect’, and ‘decree’ with ‘order’
(wherever occurring).

Item 78: Sections 57 to
59

91. This item repeals the
current sections and inserts substitutes. The purpose of
replacing these provisions is not to change their operation but
rather the terminology of those provisions. These changes
replace the legalistic terminology such as ‘decree
nisi ’, ‘decree of dissolution of marriage’
and ‘decree absolute’, with ‘divorce order in
relation to a marriage’ and ‘effect as a final
order’.

93. In relation to section 58,
the effect of the provision, which allows for the application by
the parties (or Attorney-General), for the divorce to be rescinded
on the basis of miscarriage of justice before the orders become
final, remains the same.

94. In relation to section 59,
the effect of the amended provision is that if a divorce order
under the Act in relation to a marriage has taken effect, a party
to the marriage may marry again, which is the same effect as the
current provision.

97. This item amends the
current provision to replace the phrase ‘proceedings between
those parties for principal relief’ with ‘divorce or
validity of marriage proceedings between those parties’,
which is consonant with other changes to the Act regarding
terminology.

Item 82: Subparagraph
69ZH(3)(b)(iii)

98. This item repeals the
current provision and inserts a substitute. The purpose of
replacing this provision is not to change the operation but rather
the terminology of the provision. This change replaces the
term ‘a dissolution of that marriage’ with ‘the
divorce of the parties’. Consonant with other changes
to the Act regarding terminology, this change provides clarity of
language relating to divorce.

Item 83: Paragraph
75(2)(g)

99. This item amends the
current provision to replace the phrase ‘the marriage has
been dissolved’ with ‘or divorced’, consonant
with other changes to the Act regarding terminology.

101. This item
repeals the current subparagraph (b) and inserts a
substitute. The purpose of replacing this provision is not to
change the operation but rather the terminology of the
provision. This change replaces the phrases ‘that has
been dissolved’ and ‘dissolution’ with ‘who
have divorced’ and ‘divorce’.

Item 85: Paragraphs
79(1C)(a) and (b)

102. This item
amends the current provision to replace the phrase
‘proceedings for principal relief’ with ‘divorce
or validity of marriage proceedings’, consonant with other
changes to the terminology in the Act.

103. This item
repeals the current provision and inserts a substitute. The
purpose of replacing this provision is not to change the operation
but rather the terminology of the provision. This change
replaces the phrases ‘that has been dissolved’ and
‘dissolution’ with ‘who have divorced’ and
‘divorce’.

105. This item
amends the current provision to replace ‘the dissolution
or’ with ‘the termination of the marriage to which the
maintenance agreement relates by divorce or the’. This change
is consonant with other changes to the Act regarding
terminology.

Item 88: Paragraph
90(2)(d)

106. This item amends the
current provision to replace ‘the dissolution or’ with
‘the termination of the marriage to which the maintenance
agreement relates by divorce or the’. This change is
consonant with other changes to the Act regarding
terminology.

Item 89: Paragraph
90(2)(e)

107. This item
amends the current provision to replace ‘the dissolution
or’ with ‘the termination of the marriage to which the
maintenance agreement relates by divorce or the’. This change
is consonant with other changes to the Act regarding
terminology.

Item 90: Paragraph
90B(2)(a)

108. This item
amends the current provision to replace the phrase ‘the
dissolution of the marriage’ with
‘divorce’.

Item 91: Subparagraph
90B(2)(b)(ii)

109. This item
amends the current provision to replace the phrase ‘the
dissolution of the marriage’ with ‘divorce’. This
change is consonant with other changes to the Act regarding
terminology.

Item 92: Subparagraph
90B(2)(b)(iii)

110. This item
repeals the current provision and inserts a substitute. The
purpose of replacing this provision is not to change the operation
but rather the terminology of the provision. This change
replaces the phrase ‘the dissolution of the’ with
‘divorce’.

Item 93: Subparagraph
90C(2)(b)(ii)

111. This item
amends the current provision to replace the phrase ‘the
dissolution of the marriage’ with
‘divorce’.

Item 94: Subparagraph
90C(2)(b)(iii)

112. This item
repeals the current provision and inserts a substitute. The
purpose of replacing this provision is not to change the operation
but rather the terminology of the provision. This change
replaces the phrase ‘the dissolution of the’ with
‘divorce’.

Item 95: Paragraph
90D(1)(a)

113. This item
amends the current provision to replace ‘a decree nisi
dissolving a marriage is made’ with ‘a divorce order is
made in relation to a marriage (whether it has taken effect or
not)’.

Item 96: Subparagraph
90MI(a)(i)

114. This item
amends the current provision to replace the phrase ‘the
decree absolute dissolving the marriage’ with ‘the
divorce order that has terminated the marriage’. This change
is consonant with other changes to the Act regarding
terminology.

Item 97: Subsection 90MK(2)
(subparagraph (a)(i) of the definition of service
time )

115. This item
amends the current provision to replace the phrase ‘the
decree absolute dissolving the marriage’ with ‘the
divorce order that has terminated the marriage’. This change
is consonant with other changes to the Act regarding
terminology.

Item 98: Subsection
91(1A)

116. This item
amends the current provision to replace ‘a decree nisi
has been made in any proceedings and before it has become
absolute’ with ‘a divorce order had been made in any
proceedings and before it has taken effect’. This change is
consonant with other changes to the terminology in the
Act.

Item 99: Subsection
92(1)

117. This item
amends the current provision to replace the phrase ‘other
than proceedings for principal relief’ with ‘(other
than divorce or validity of marriage proceedings)’,which is
consonant with other changes to the Act regarding
terminology.

Item 100: Subsection
92(1A)

118. This item
amends the current provision to replace the phrase
‘proceedings for principal relief’ with ‘divorce
or validity of marriage proceedings’, which is consonant with
other changes to the Act regarding terminology.

Item 101: Section
93

119. This item
amends the current provision to replace the phrase ‘a decree
of dissolution of marriage after the decree has become
absolute’ with ‘a divorce order after the order has
taken effect’. This change is consonant with other changes to
the Act regarding terminology.

Item 102: Paragraph
98(1)(a)

120. This item
amends the current provision to replace the phrase
‘proceedings for principal relief’ with ‘divorce
or validity of marriage proceedings’. This change is
consonant with other changes to the Act regarding
terminology.

Item 103: Paragraph
98(1)(b)

121. This item
amends the current provision to replace the phrase ‘other
than proceedings for principal relief’ with ‘(other
than divorce or validity of marriage proceedings)’. This
change is consonant with other changes to the Act regarding
terminology.

Item 104: Subsection
98A(1)

122. This item
amends the current provision to replace the phrase
‘dissolution of marriage’ with ‘a divorce order
in relation to a marriage’. This change is consonant
with other changes to the Act regarding terminology.

Item 105: Subsection
98A(2)

123. This item
amends the current provision to replace the phrase ‘the
dissolution of marriage’ with ‘a divorce order in
relation to a marriage’. This change is consonant with
other changes to the Act regarding terminology.

Item 106: Subsection
98A(2A)

124. This item
amends the current provision to replace the phrase ‘the
dissolution of marriage’ with ‘the divorce order in
relation to the marriage’. This change is consonant
with other changes to the Act regarding terminology.

Item 107: Subsection
98A(4)

125. This item
amends the current provision to replace the phrase
‘dissolution of the marriage’ with ‘the divorce
order in relation to the marriage’. This change is
consonant with other changes to the Act regarding
terminology.

Item 108: Subsection 104(1)
(definition of applicant )

126. This item
amends the current provision to replace the phrase ‘the
dissolution or’ with ‘a divorce or the’.
This change is consonant with other changes to the Act relating to
terminology.

128. This item
amends the current provision to replace the term
‘dissolution’ with ‘divorce’. This is
consonant with other changes to the Act relating to
terminology.

Item 111: Subsection
104(1) (definition of relevant date )

129. This item
amends the current provision to replace the phrase ‘the
dissolution or’ with ‘a divorce or the’.
This is consonant with other changes to the Act relating to
terminology.

Item 112: Subsection 104(1)
(definition of relevant date )

130. This item
amends the current provision to replace the term
‘dissolution’ with ‘divorce’. This is
consonant with other changes to the Act relating to
terminology.

Item 113: Subsection 104(1)
(definition of respondent )

131. This item
amends the current provision to replace the phrase ‘the
dissolution or’ with ‘a divorce or the’.
This is consonant with other changes to the Act relating to
terminology.

Item 114: Subsection 104(1)
(definition of respondent )

132. This item
amends the current provision to replace the term
‘dissolution’ with ‘divorce’. This is
consonant with other changes to the Act relating to
terminology.

Item 115: Subsection
104(3)

133. This item
amends the current provision to replace the phrase ‘A
dissolution or’ with ‘A divorce or the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 116: Paragraph
104(3)(f)

134. This item
amends the current provision to replace the phrase ‘Any
dissolution or’ with ‘divorce, the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 117: Subsection
104(4)

135. This item
amends the current provision to replace the phrase ‘A
dissolution or’ with ‘A divorce or the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 118: Subsection
104(5)

136. This item
amends the current provision to replace the phrase ‘Any
dissolution or’ with ‘Any divorce or any’. This
change is consonant with other changes to the Act regarding
terminology.

Item 119: Subsection
104(7)

137. This item
amends the current provision to replace the phrase ‘a
dissolution or’ with ‘a divorce or the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 120: Paragraph
104(7)(a)

138. This item
amends the current provision to replace the phrase ‘the
dissolution’ (wherever occurring) with ‘the
divorce’. This change is consonant with other changes to the
Act regarding terminology.

Item 121: Paragraph
104(7)(b)

139. This item
amends the current provision to replace the term ‘the
dissolution’ with ‘the divorce’. This change is
consonant with other changes to the Act regarding
terminology.

Item 122: Subsection
104(8)

140. This item
amends the current provision to replace the phrase ‘a
dissolution or’ with ‘a divorce or the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 123: Subsection
104(9)

141. This item
amends the current provision to replace the phrase ‘a
dissolution or’ with ‘a divorce or the’. This
change is consonant with other changes to the Act regarding
terminology.

Item 124: Subsection
104(9)

142. This item
amends the current provision to replace the term ‘the
dissolution’ with ‘the divorce’.

Item 125: Subsection
104(10)

143. This item
amends the provision to replace the term ‘dissolutions’
with ‘divorces’. This change is consonant with other
changes to the Act regarding terminology.

Item 126: Subsection
104A(2)

144. This item
amends the current provision to replace the word
‘dissolution’ with the phrase ‘divorce or
the’. This change is consonant with other changes to the Act
regarding terminology.

Item 127: Subsection
104A(3)

145. This item
amends the current provision to replace the word
‘dissolution’ with the phrase ‘divorce or
the’. This change is consonant with other changes to the Act
regarding terminology.

Item 128: Paragraph
123(1)(n)

146. This item
amends the current provision to replace the phrase
‘dissolution of’ with ‘a divorce order in
relation to’. This change is consonant with other changes to
the Act regarding terminology.

Item 129: Transitional
arrangements in relation to decrees nisi made before the
commencement of this Part

147. This item
inserts a new provision that deals with the consequences of
terminology changes to this Act relating to decrees nisi. The
effect of this provision is to make clear that a decree nisi for
the dissolution of marriage has effect as if it were a divorce
order, on the day which the decree nisi was made or became
absolute.

Part 11
- Leave to appeal

Family
Law Act 1975

Item 130:
Subsections 94AA(1) to (2C)

148. This item
repeals subsections 94AA(1) to (2C), and substitutes a table
setting out the circumstances in which leave to appeal is
required. The table replicates the information currently
contained in the provision. The purpose of this exercise is
to make clear what is currently in the Act.

149. The new
subsection (2) restates the current law that an order by consent to
dispose of an application for leave to appeal in any of the four
circumstances set out in the table may be made by: a Full Court of
the Family Court; a Judge of the Appeal Division; or another Judge
if there is no Judge of the Appeal Division available.

150. The new
subsection (2A) restates the law in relation to item 4 of the table
(regarding appeals to the Family Court from the Federal Magistrates
Court) which is that where an application for leave is dealt with
by consent, it is dealt with by a single Judge.

Item 131:
Application

151. The effect
of this item is to make clear when the amendments to this Part,
relating to applications for leave to appeal, come into operation
for the purposes of the Act. Specifically, on or after the
commencement of this Part.

Part
12 - Power to dismiss appeal

Family
Law Act 1975

Item 132:
After section 96

152. This item inserts a new section 96AA
after section 96 of the Act. The item provides that if it
appears to a court hearing an appeal under Part X of the Act that
the notice of appeal does not disclose proper grounds of appeal,
the court may order that the proceedings on the appeal be stayed or
dismissed.

Item 133:
Application

153. The effect of this item is to make
clear that amendments to this Part also applies to appeals that are
initiated before or after this Part commences.

Part 13
- Appeals to High Court

Family
Law Act 1975

Item 134: Section
95

154. This item
repeals the current provision and inserts a substitute which
retains a restricted right of appeal to the High Court from Family
Court proceedings, based on special leave being granted by the High
Court. The new provision removes the current avenue of appeal
based on a certificate of a Full Court of the Family Court on the
basis of public interest or an important question of
law.

Item 135:
Application

155. The amendment made by item
134 applies to appeals in relation to proceedings whether initiated
before or after commencement of that item. The certificate
provisions described in paragraph 152 (above) have very rarely been
used.

Part 14
- Recovery of amounts paid under maintenance
orders

Family Law
Act 1975

Item 136:
At the end of Division 7 of Part VII

156. This item adds a new Subdivision G -
‘Recovery of amounts paid under maintenance orders’,
which inserts section 66X in the Act. The provision is
intended to provide legislative support for the recovery of monies
paid (or property or the value of property transferred) under child
maintenance orders, where the payer is later found not to be the
child's parent. Currently, the position is that a person who
is not a parent does not have standing to bring an application to
recover monies paid under a child maintenance order by way of
modification of that order. Effectively this means that
such a person can only recover maintenance paid in these
circumstances by taking civil debt recovery action in a State
court.

157. The provisions in section 66X
will allow a person who has been found not to be a person who has a
duty to support a child to recover, in proceedings under this
section, in a court having jurisdiction under Part VII of the Act,
any monies paid or property transferred (or the value of that
property) in compliance by that person with a 'purported' order for
the child's maintenance under the Act.

158. Subsection 66X(2) gives
the Court a discretion, in cases to which the section applies, to
determine what kind of order that it considers just and equitable
to ensure that any monies paid or property transferred by the
maintenance provider to another person under a purported child
maintenance order is repaid or restored to that maintenance
provider.

159. Paragraph 66X(2)(a)
allows the Court to make orders for the repayment of money paid
under a purported order made under paragraph 66P(1)(a) or
(b).

160. Paragraph 66X(2)(b) allows the
court to make orders for the return of property transferred under a
purported maintenance order made under paragraph 66)(1)(c), or for
the repayment of the value of that property relating to child
maintenance.

161. Subsection 66X(3) deals with
the situation where the court has made an order under paragraph
66P(1)(c) for the transfer or settlement of property partly for the
purpose of the provision of child maintenance and partly for some
other purpose (for example, by way of family property
settlement). In this case, the property, or the value of the
property, that can be the subject of an order under paragraph
66(2)(b) is the property, or value of that property, only to the
extent that it represents child maintenance.

162. Subsection 66X(4) lists some
of the kinds of orders the court may make under
paragraph 66X(2)(b), without limiting the
court's powers under that paragraph.

163. Subsection 66X(5) ensures
that, for the purpose of section 66X, the Child Support
Agency is not taken to be the 'person' to whom the amounts of child
maintenance were paid, and therefore subject to an order for
repayment under section 66X. The provision is intended to
address those situations where the payer has paid monies through
the Agency in compliance with the child maintenance order as a
registrable maintenance liability under the Child Support
(Registration and Collection) Act 1988 .

Part
15- Powers of judicial registrars

Family
Law Act 1975

Item 142: Paragraph
26B(1A)(e)

164. Current
section 26B deals with the powers that may be delegated to Judicial
Registrars. Subsection (1) states that the Judges of the
Court cannot delegate to Judicial Registrars powers to make what
are called ‘excluded child orders’. This
amendment makes clear that orders to vary a parenting order made
under the new subsection 70NEB(1) added by Item 3, and the new
paragraph 70NG(1)(b) dealing with the making of a further parenting
order that compensates for contact or residence forgone as a result
of the current contravention, and paragraph 70NG(1)(ba) which deals
with any other order varying the order so contravened, are excluded
from the definition of ‘excluded child order’.
The effect of the change is to allow the Judges to delegate the
power to make orders under these sections to Judicial
Registrars.

Part 16 - Jurisdiction of
Family Court of Western Australia

Bankruptcy Act
1966

Item 138 - After section
35A

165. The
purpose of this amendment, inserting section 35B in the
Bankruptcy Act 1966 (Bankruptcy Act), is to confer on the
Family Court of Western Australia the same jurisdiction in
bankruptcy that is conferred on the Family Court of Australia under
amendments in the Bankruptcy and Family Law Legislation Amendment
Bill 2005, and under existing section 35A of the Bankruptcy
Act.

166. Subsection
35B(1) clarifies that sections 27, 35 and 35A of the Bankruptcy Act
apply to the Family Court of Western Australia as they apply to the
Family Court of Australia. This means that the Family Court
of Western Australia, as well as the Family Court under section 35
of the Bankruptcy Act, can exercise jurisdiction in bankruptcy in
family law financial proceedings in relation to any matter
connected with, or arising out of, the bankruptcy of a bankrupt
party to those proceedings, and is not excluded from exercising
that jurisdiction by the limitations of section 27 of that
Act.

167. Subsection
35B(2) makes amendments consequential to subsection 35B(1), to
extend references in paragraph 35A(f) to 'Family Court Judge'
and 'Registrar of the Family Court' to also refer to a judge and
registrar respectively of the Family Court of Western
Australia.

Part 17 - Alteration
of property interests

Family
Law Act 1975

Item 139 - After
subsection 79(10)

168. This item
inserts subsection 79(10A) after subsection 79(10) in the Family
Law Act 1975 . Subsection 79(10) was inserted by the
Bankruptcy and Family Law Legislation Amendment Act 2005 ,
providing that certain persons are entitled to become a party to
family property proceedings - in particular, a creditor of a party
to the proceedings if the creditor would not be able to recover his
or her debt if the order were made, and any other person whose
interests would be affected by the making of the order.

169. Subsection
79(10A) qualifies the operation of subsection 79(10) so that
subsection 79(10) will not apply to allow a creditor to be a
party to family property proceedings if a party to the proceedings
is a bankrupt (to the extent to which the creditor's debt is a
provable debt under the Bankruptcy Act 1966 ) or is a debtor
subject to a personal insolvency agreement (to the extent to which
the creditor's debt is covered by the personal insolvency
agreement).

170. This amendment
supports the aims of the reforms in the Bankruptcy and Family
Law Legislation Amendment Act 2005 , ensuring that the trustee
in bankruptcy represents the interests of all creditors in family
law property proceedings where a party is a bankrupt or is the
subject of a personal insolvency agreement.